EXHIBIT 3.10
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
HEP LOGISTICS GP, L.L.C.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.1 Definitions................................................................. 2
Section 1.2 Construction................................................................ 6
ARTICLE II
ORGANIZATION
Section 2.1 Formation .................................................................. 7
Section 2.2 Name ....................................................................... 7
Section 2.3 Registered Office; Registered Agent; Principal Office; Other Offices........ 7
Section 2.4 Purpose and Business........................................................ 7
Section 2.5 Powers ..................................................................... 8
Section 2.6 Power of Attorney........................................................... 8
Section 2.7 Term. ...................................................................... 9
Section 2.8 Title to Company Assets..................................................... 10
ARTICLE III
RIGHTS OF MEMBERS
Section 3.1 Limitation of Liability..................................................... 10
Section 3.2 Outside Activities of the Members........................................... 10
Section 3.3 Rights of Members........................................................... 10
ARTICLE IV
TRANSFERS OF INTERESTS
Section 4.1 Transfer Generally.......................................................... 11
Section 4.2 Transfer of Membership Interests............................................ 11
Section 4.3 Restrictions on Transfers................................................... 12
ARTICLE V
CAPITAL CONTRIBUTIONS AND ISSUANCE OF INTERESTS
Section 5.1 Initial Capital Contributions............................................... 12
Section 5.2 Closing Capital Contributions............................................... 12
Section 5.3 Additional Capital Contributions............................................ 13
Section 5.4 Interest and Withdrawal..................................................... 13
Section 5.5 Loans from Members.......................................................... 13
Section 5.6 Issuances of Additional Company Securities.................................. 14
Section 5.7 Limited Preemptive Rights................................................... 14
Section 5.8 Fully Paid and Non-Assessable Nature of Membership Interests................ 15
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
Section 6.1 Allocations ................................................................ 15
Section 6.2 Distributions .............................................................. 15
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HEP LOGISTICS GP, L.L.C.
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
ARTICLE VII
MANAGEMENT AND OPERATION OF BUSINESS
Section 7.1 Management ................................................................. 15
Section 7.2 Certificate of Formation.................................................... 17
Section 7.3 Restrictions on Managing Member's Authority................................. 18
Section 7.4 Reimbursement of the General Partner; Benefit Plans......................... 18
Section 7.5 Outside Activities.......................................................... 19
Section 7.6 Loans from the General Partner; Loans or Contributions from the
Company; Contracts with Affiliates.......................................... 19
Section 7.7 Indemnification............................................................. 21
Section 7.8 Liability of Indemnitees.................................................... 23
Section 7.9 Other Matters Concerning the Managing Member................................ 23
Section 7.10 Reliance by Third Parties................................................... 24
ARTICLE VIII
OFFICERS
Section 8.1 Officers ................................................................... 24
Section 8.2 Compensation. .............................................................. 27
ARTICLE IX
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Records and Accounting...................................................... 27
Section 9.2 Fiscal Year ................................................................ 28
ARTICLE X
TAX MATTERS
Section 10.1 Tax Returns and Information................................................. 28
Section 10.2 Tax Elections............................................................... 28
ARTICLE XI
ADMISSION OF MEMBERS
Section 11.1 Admission of MLP............................................................ 28
Section 11.2 Admission of Substituted Members............................................ 28
Section 11.3 Admission of Additional Members............................................. 29
Section 11.4 Amendment of Agreement and Certificate of Formation......................... 29
ARTICLE XII
WITHDRAWAL OF MEMBERS
Section 12.1 Withdrawal of Members....................................................... 29
ARTICLE XIII
DISSOLUTION AND LIQUIDATION
Section 13.1 Dissolution................................................................. 30
Section 13.2 Liquidator ................................................................. 30
Section 13.3 Liquidation................................................................. 30
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HEP LOGISTICS GP, L.L.C.
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
Section 13.4 Cancellation of Certificate of Formation.................................... 31
Section 13.5 Return of Capital Contributions............................................. 31
Section 13.6 Waiver of Partition......................................................... 31
Section 13.7 Capital Account Restoration................................................. 32
ARTICLE XIV
AMENDMENT OF AGREEMENT
Section 14.1 Amendment to be Adopted Solely by the Managing Member....................... 32
Section 14.2 Amendment Procedures........................................................ 33
ARTICLE XV
MERGER
Section 15.1 Authority .................................................................. 33
Section 15.2 Procedure for Merger or Consolidation....................................... 34
Section 15.3 Approval by Members of Merger or Consolidation.............................. 35
Section 15.4 Certificate of Merger....................................................... 35
Section 15.5 Effect of Merger............................................................ 35
ARTICLE XVI
GENERAL PROVISIONS
Section 16.1 Addresses and Notices....................................................... 36
Section 16.2 Further Action.............................................................. 36
Section 16.3 Binding Effect.............................................................. 36
Section 16.4 Integration................................................................. 37
Section 16.5 Creditors .................................................................. 37
Section 16.6 Waiver ..................................................................... 37
Section 16.7 Counterparts................................................................ 37
Section 16.8 Applicable Law.............................................................. 37
Section 16.9 Invalidity of Provisions.................................................... 37
Section 16.10 Consent of Members.......................................................... 37
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HEP LOGISTICS GP, L.L.C.
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
HEP LOGISTICS GP, L.L.C.
THIS FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of
HEP Logistics GP, L.L.C. (the "Company"), dated as of the Closing Date, is
entered into by Xxxxx Energy Partners, L.P., a Delaware limited partnership (the
"MLP"), as sole Member of the Company.
RECITALS:
WHEREAS, the MLP entered into a limited liability company agreement
dated effective as of April 16, 2004 for the purpose of forming the Company as a
limited liability company under the Delaware Limited Liability Company Act and
filed a Certificate of Formation with the Secretary of State of the State of
Delaware effective as of April 19, 2004.
WHEREAS, on the Closing Date and pursuant to the Contribution
Agreement:
(a) the MLP General Partner shall contribute to the MLP,
as a Capital Contribution, all of its ownership interests in Pipeline Assets,
L.P., Pipeline GP, L.L.C., Navajo Southern, L.P. and Pipeline, L.L.C. in
exchange for (i) 2% general partner interest, subject to all of the rights,
privileges and duties of the MLP General Partner under the MLP Agreement, (ii)
the Incentive Distribution Rights, (iii) _______ Common Units, (iv) _______
Subordinated Units, (v) the right to be reimbursed for $_______ million in
capital expenditures; and (vi) $______ million in cash;
(b) Xxxxx Corporation shall contribute to the MLP , as a
Capital Contribution, all of its interest in Mountain Home, L.L.C. in exchange
for (i) _________ Common Units, (ii) _________ Subordinated Units, and (iii) the
right to be reimbursed for $________ million in capital expenditures; and
(c) Navajo Refining Company, L.P. shall contribute to the
MLP as a capital contribution all of its interests in Refining Assets, L.P.,
Refining GP, L.L.C. and Xxxxx Cross, L.L.C. in exchange for (i) ______
Subordinated Units, (ii) ________ Common Units and (iii) the right to be
reimbursed for $______ million in capital expenditures.
WHEREAS, the MLP now desires to execute this amended and restated
Limited Liability Company Agreement to reflect certain capital contributions to
the Company as of the Closing Date and certain other matters.
NOW THEREFORE, in consideration of the covenants, conditions and
agreements contained herein, the parties hereto hereby enter into this
Agreement:
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HEP LOGISTICS GP, L.L.C.
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
The following definitions shall be for all purposes, unless otherwise
clearly indicated to the contrary, applied to the terms used in this Agreement.
Capitalized terms used herein but not otherwise defined shall have the meaning
assigned to such term in the MLP Agreement.
"Additional Member" means a Person admitted to the Company as a Member
pursuant to Section 11.3 and who is shown as such on the books and records of
the Company.
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control with, the Person in question. As used
herein, the term "control" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
Person, whether through ownership of voting securities, by contract or
otherwise.
"Agreement" means this First Amended and Restated Limited Liability
Company Agreement of HEP Logistics GP, L.L.C., as it may be amended,
supplemented or restated from time to time. The Agreement shall constitute a
"limited liability company agreement" as such term is defined in the Delaware
LLC Act.
"Assignee" means a Person to whom one or more Membership Interests have
been transferred in a manner permitted under this Agreement, but who has not
been admitted as a Substituted Member.
"Associate" means, when used to indicate a relationship with any
Person; (a) any corporation or organization of which such Person is a director,
officer or partner or is, directly or indirectly, the owner of 20% or more of
any class of voting stock or other voting interest; (b) any trust or other
estate in which such Person has at least a 20% beneficial interest or as to
which such Person serves as trustee or in a similar fiduciary capacity; and (c)
any relative or spouse of such Person, or any relative of such spouse, who has
the same principal residence as such Person.
"Business Day" means Monday through Friday of each week, except that a
legal holiday recognized as such by the government of the United States of
America or the State of Texas shall not be regarded as a Business Day.
"Capital Contribution" means any cash, cash equivalents or the value of
Contributed Property that a Member contributes to the Company pursuant to this
Agreement or the Contribution and Conveyance Agreement.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware as referenced
in Section 2.1, as such Certificate of Formation may be amended, supplemented or
restated from time to time.
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HEP LOGISTICS GP, L.L.C.
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
"Closing Date" means the first date on which Common Units are sold by
the MLP to the Underwriters pursuant to the provisions of the Underwriting
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and in
effect from time to time. Any reference herein to a specific section or sections
of the Code shall be deemed to include a reference to any corresponding
provision of successor law.
"Commission" means the United States Securities and Exchange
Commission.
"Common Unit" has the meaning assigned to such term in the MLP
Agreement.
"Company" means HEP Logistics GP, L.L.C., a Delaware limited liability
company, and any successors thereto.
"Company Group" means the Company and any Subsidiary of the Company,
treated as a single consolidated entity.
"Company Security" means any class or series of membership interest in
the Company.
"Conflicts Committee" has the meaning assigned to such term in the MLP
Agreement.
"Contributed Property" means each property or other asset, in such form
as may be permitted by the Delaware LLC Act, but excluding cash, contributed to
the Company.
"Contribution and Conveyance Agreement" means the Contribution,
Conveyance and Assumption Agreement, dated as of the Closing Date, is entered
into by and among the Company, Xxxxx Corporation, Navajo Pipeline Co., L.P.,
Xxxxx Logistic Services, L.L.C., HEP Logistics Holdings, L.P., the MLP, the OLP,
and certain other partiers named therein, together with any additional documents
and instruments contemplated or referenced thereunder.
"Credit Agreement" means the Credit Agreement, dated [_________], 2004,
among the OLP, as borrower, and a syndicate of financial institutions led by
[________________].
"Credit Facility" means the $125,000,000 senior secured revolving
credit facility as part of the Credit Agreement.
"Delaware LLC Act" means the Delaware Limited Liability Company Act, 6
Del. C.Section 18-101, et seq., as amended, supplemented or restated from time
to time, and any successor to such statute.
"General Partner" means Xxxxx Logistics Holdings, L.P., a Delaware
limited partnership and its successors and permitted assigns as general partner
of the MLP.
"Group Member" means a member of the Company Group.
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HEP LOGISTICS GP, L.L.C.
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
"Indemnitee" means (a) the Managing Member, (b) any Person who is or
was a member, partner, director, officer, employee, agent or trustee of any
Group Member, the MLP, the General Partner or any of their respective Affiliates
and (c) any Person who is or was serving at the request of the Managing Member
as a member, partner, director, officer, employee, partner, agent, fiduciary or
trustee of another Person, in each case, acting in such capacity, provided, that
a Person shall not be an Indemnitee by reason of providing, on a
fee-for-services basis, trustee, fiduciary or custodial services.
"Initial Public Offering" means the initial offering and sale of Common
Units to the public, as described in the Registration Statement.
"Liquidation Date" means the date on which any event giving rise to the
dissolution of the Company occurs.
"Liquidator" means one or more Persons selected by the Managing Member
to perform the functions described in Section 13.2 as liquidating trustee of the
Company within the meaning of the Delaware LLC Act.
"Managing Member" means Xxxxx Energy Partners, L.P. and its
predecessors, successors and permitted assigns as managing member of the
Company.
"Member" means any Person that is admitted to the Company as a member
pursuant to the terms and conditions of this Agreement; but the term Member
shall not include any Person from and after the time such Person withdraws as a
Member from the Company.
"Membership Interest" means the ownership interest of a Member in the
Company.
"Merger Agreement" has the meaning assigned to such term in Section
15.1.
"Minimum Quarterly Distribution" has the meaning assigned to such term
in the MLP Agreement.
"MLP" has the meaning assigned to such term in the recitals.
"MLP Agreement" means the First Amended and Restated Agreement of
Limited Partnership of Xxxxx Energy Partners, L.P., as it may be amended,
supplemented or restated from time to time.
"MLP General Partner" means HEP Logistics Holdings, L.P., a Delaware
limited partnership and the general partner of the MLP.
"MLP Security" has the meaning assigned to the term "Partnership
Security" in the MLP Agreement.
"National Securities Exchange" has the meaning assigned to such term in
the MLP Agreement.
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HEP LOGISTICS GP, L.L.C.
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
"Omnibus Agreement" means the Omnibus Agreement, dated the Closing
Date, among the Company, the MLP, the General Partner and certain other parties
named therein, together with any additional documents and instruments
contemplated or referenced thereunder.
"Opinion of Counsel" means a written opinion of counsel (which may be
regular counsel to the Company or the MLP or any of their respective Affiliates)
acceptable to the Managing Member in its reasonable discretion.
"Percentage Interest" means the percentage interest in the Company held
by each Member upon completion of the transactions in Section 5.2 and shall
mean, as to the MLP, 100%.
"Person" means an individual or a corporation, limited liability
company, partnership, joint venture, trust, unincorporated organization,
association, government agency or political subdivision thereof or other entity.
"Pro Rata" means, when modifying Members and Assignees, apportioned
among all Members and Assignees in accordance with their relative Percentage
Interests.
"Quarter" means, unless the context requires otherwise, a fiscal
quarter of the Company.
"Registration Statement" means the Registration Statement on Form S-1
(Registration No. 333-113588) as it has been or as it may be amended or
supplemented from time to time, filed by the MLP with the Commission under the
Securities Act to register the offering and sale of the Common Units in the
Initial Offering.
"Restricted Business" has the meaning assigned to such term in the
Omnibus Agreement.
"Securities Act" means the Securities Act of 1933, as amended,
supplemented or restated from time to time and any successor to such statute.
"Special Approval" has the meaning assigned to such term in the MLP
Agreement.
"Subordinated Unit" has the meaning assigned to such term in the MLP
Agreement.
"Subordination Period" has the meaning assigned to such term in the MLP
Agreement.
"Subsidiary" means, with respect to any Person, (a) a corporation of
which more than 50% of the voting power of shares entitled (without regard to
the occurrence of any contingency) to vote in the election of directors or other
governing body of such corporation is owned, directly or indirectly, at the date
of determination, by such Person, by one or more Subsidiaries of such Person or
a combination thereof; (b) a partnership (whether general or limited) in which
such Person or a Subsidiary of such Person is, at the date of determination, a
general or limited partner of such partnership, but only if more than 50% of the
partnership interests of such partnership (considering all of the partnership
interests of the partnership as a single class) is owned, directly or
indirectly, at the date of determination, by such Person, by one or more
Subsidiaries of such
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HEP LOGISTICS GP, L.L.C.
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
Person, or a combination thereof; or (c) any other Person (other than a
corporation or a partnership) in which such Person, one or more Subsidiaries of
such Person, or a combination thereof, directly or indirectly, at the date of
determination, has (i) at least a majority ownership interest or (ii) the power
to elect or direct the election of a majority of the directors or other
governing body of such Person.
"Substituted Member" means a Person who is admitted as a Member to the
Company pursuant to Section 11.2 in place of and with all the rights of a Member
and who is shown as a Member on the books and records of the Company.
"Surviving Business Entity" has the meaning assigned to such term in
Section 15.2(b).
"transfer" has the meaning assigned to such term in Section 4.1(a).
"Underwriter" means each Person named as an underwriter in the
Underwriting Agreement who purchases Common Units pursuant thereto.
"Underwriting Agreement" means, collectively, the Underwriting
Agreement dated the Closing Date among the Company, GP LLC, the MLP General
Partner, the MLP, the OLP, the Underwriters and certain other parties named
therein, providing for the purchase of Common Units by such Underwriters.
"Unit" has the meaning assigned to such term in the MLP Agreement.
"Unit Majority" has the meaning assigned to such term in the MLP
Agreement.
"U.S. GAAP" means United States Generally Accepted Accounting
Principles consistently applied.
"Working Capital Borrowings" has the meaning assigned to such term in
the MLP Agreement.
Section 1.2 Construction.
(a) Unless the context otherwise requires, as used in
this Agreement: (i) a term defined in Section 1.1 has the meaning ascribed to it
in Section 1.1; (ii) capitalized terms used herein but not otherwise defined
shall have the meanings assigned to such terms in the MLP Agreement; (iii) an
accounting term not otherwise defined herein has the meaning ascribed to it in
accordance with U.S. GAAP; (iv) "or" is not exclusive; (v) "including" means
"including, without limitation;" (vi) words in the singular include the plural
and vice versa; (vii) words applicable to one gender apply to each gender;
(viii) the terms "hereof," "herein," "hereby," "hereto" and derivative or
similar words refer to this entire Agreement; (ix) the terms "Article" and
"Section" refer to the specified Article or Section of this Agreement; and (x)
the phrases "pursuant to," "as described in" and "subject to the terms of," when
used with reference to a particular Section of this Agreement, or words of
similar import, shall refer to such Section referenced therein.
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HEP LOGISTICS GP, L.L.C.
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
(b) A reference to any Person includes such Person's
successors and permitted assigns.
(c) Any reference to "days" shall mean calendar days
unless "Business Days" (as defined in Section 1.1) are expressly specified;
references to "calendar" mean the Gregorian calendar.
ARTICLE II
ORGANIZATION
Section 2.1 Formation.
On April 19, 2004, the MLP, formed the Company as a limited liability
company pursuant to the provisions of the Delaware LLC Act by virtue of the
filing of the Certificate of Formation with the Secretary of State of the State
of Delaware.
Section 2.2 Name.
The name of the Company shall be "HEP Logistics GP, L.L.C.". The
Company's business may be conducted under any other name or names deemed
necessary or appropriate by the Managing Member in its sole discretion,
including, if consented to by the Managing Member, the name of the MLP. The
words "Limited Liability Company," "L.L.C." or "LLC" or similar words or letters
shall be included in the Company's name where necessary for the purpose of
complying with the laws of any jurisdiction that so requires. The Managing
Member in its discretion may change the name of the Company at any time and from
time to time and shall notify the other Member(s) of such change in the next
regular communication to the Members.
Section 2.3 Registered Office; Registered Agent; Principal Office; Other
Offices.
Unless and until changed by the Managing Member, the registered office
of the Company in the State of Delaware shall be located at 0000 Xxxxxx Xxxxxx,
Xxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and the registered agent for
service of process on the Company in the State of Delaware at such registered
office shall be The Corporation Trust Company. The principal office of the
Company shall be located at 000 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
or such other place as the Managing Member may from time to time designate by
notice to the Members. The Company may maintain offices at such other place or
places within or outside the State of Delaware as the Managing Member deems
necessary or appropriate.
Section 2.4 Purpose and Business.
The purpose and nature of the business to be conducted by the Company
shall be to (a) serve as the general partner of the OLP and, in connection
therewith, to exercise all the rights and powers conferred upon the Company as
general partner of the OLP pursuant to the First Amended and Restated Agreement
of Limited Partnership of the OLP, dated the Closing Date, (b) engage directly
in, or enter into or form any corporation, partnership, joint venture, limited
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HEP LOGISTICS GP, L.L.C.
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
liability company or other arrangement to engage indirectly in, any business
activity that is approved by the Managing Member and which lawfully may be
conducted by a limited liability company organized pursuant to the Delaware LLC
Act and, in connection therewith, to exercise all of the rights and powers
conferred upon the Company pursuant to the agreements relating to such business
activity, and (c) do anything necessary or appropriate to the foregoing,
including the making of capital contributions or loans to a Group Member, the
MLP or any Subsidiary thereof; provided, however, in the case of (b) and (c)
above, that the Managing Member reasonably determines, as of the date of the
acquisition or commencement of such activity, that such activity (i) generates
"qualifying income" (as such term is defined pursuant to Section 7704 of the
Code) or (ii) enhances the operations of an activity of the OLP that generates
qualifying income. The Managing Member has no obligation or duty to the Company,
the Members, or the Assignees to propose or approve, and in its discretion may
decline to propose or approve, the conduct by the Company of any business.
Section 2.5 Powers.
The Company shall be empowered to do any and all acts and things
necessary, appropriate, proper, advisable, incidental to or convenient for the
furtherance and accomplishment of the purposes and business described in Section
2.4 and for the protection and benefit of the Company.
Section 2.6 Power of Attorney.
(a) Each Member and each Assignee hereby constitutes and
appoints the Managing Member and, if a Liquidator shall have been selected
pursuant to Section 13.2, the Liquidator (and any successor to the Liquidator by
merger, transfer, assignment, election or otherwise) and each of their
authorized officers and attorneys-in-fact, as the case may be, with full power
of substitution, as its true and lawful agent and attorney-in-fact, with full
power and authority in his name, place and xxxxx, to:
(i) execute, swear to, acknowledge, deliver,
file and record in the appropriate public offices (A) all
certificates, documents and other instruments (including this
Agreement and all amendments or restatements hereof and all
amendments and restatements of the Certificate of Formation)
that the Managing Member or the Liquidator deems necessary or
appropriate to form, qualify or continue the existence or
qualification of the Company as a limited liability company in
the State of Delaware and in all other jurisdictions in which
the Company may conduct business or own property; (B) all
certificates, documents and other instruments that the
Managing Member or the Liquidator deems necessary or
appropriate to reflect, in accordance with its terms, any
amendment, change, modification or restatement of this
Agreement; (C) all certificates, documents and other
instruments (including conveyances and a certificate of
cancellation) that the Managing Member or the Liquidator deems
necessary or appropriate to reflect the dissolution and
liquidation of the Company pursuant to the terms of this
Agreement; (D) all certificates, documents and other
instruments relating to the
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HEP LOGISTICS GP, L.L.C.
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
admission, withdrawal, removal or substitution of any Member
pursuant to, or other events described in Article IV, XI, XII
or XIII; (E) all certificates, documents and other instruments
relating to the determination of the rights, preferences and
privileges of any class or series of Membership Interests
issued pursuant hereto; and (F) all certificates, documents
and other instruments (including agreements and a certificate
of merger) relating to a merger or consolidation of the
Company pursuant to Article XV; and
(ii) execute, swear to, acknowledge, deliver,
file and record all ballots, consents, approvals, waivers,
certificates, documents and other instruments necessary or
appropriate, in the discretion of the Managing Member or the
Liquidator, to make, evidence, give, confirm or ratify any
vote, consent, approval, agreement or other action that is
made or given by the Members hereunder or is consistent with
the terms of this Agreement or is necessary or appropriate, in
the discretion of the Managing Member or the Liquidator, to
effectuate the terms or intent of this Agreement; provided,
that when required by any provision of this Agreement that
establishes a percentage of the Members or of the Members of
any class or series required to take any action, the Managing
Member and the Liquidator may exercise the power of attorney
made in this Section 2.6(a)(ii) only after the necessary vote,
consent or approval of the Members or of the Members of such
class or series, as applicable.
Nothing contained in this Section 2.6(a) shall be construed as
authorizing the Managing Member to amend this Agreement except in accordance
with Article XIV or as may be otherwise expressly provided for in this
Agreement.
(b) The foregoing power of attorney is hereby declared to
be irrevocable and a power coupled with an interest, and it shall survive and,
to the maximum extent permitted by law, not be affected by the subsequent death,
incompetency, disability, incapacity, dissolution, bankruptcy or termination of
any Member or Assignee and the transfer of all or any portion of such Member's
or Assignee's Membership Interest and shall extend to such Member's or
Assignee's successors and assigns. Each such Member or Assignee hereby agrees to
be bound by any representation made by the Managing Member or the Liquidator
acting in good faith pursuant to such power of attorney; and each such Member or
Assignee, to the maximum extent permitted by law, hereby waives any and all
defenses that may be available to contest, negate or disaffirm the action of the
Managing Member or the Liquidator taken in good faith under such power of
attorney. Each Member or Assignee shall execute and deliver to the President or
the Liquidator, within 15 days after receipt of the request therefor, such
further designation, powers of attorney and other instruments as the Managing
Member or the Liquidator deems necessary to effectuate this Agreement and the
purposes of the Company.
Section 2.7 Term.
The term of the Company commenced upon the filing of the Certificate of
Formation in accordance with the Delaware LLC Act and shall continue in
existence in perpetuity or until the
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HEP LOGISTICS GP, L.L.C.
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
earlier dissolution of the Company in accordance with the provisions of Article
XIII. The existence of the Company as a separate legal entity shall continue
until the cancellation of the Certificate of Formation as provided in the
Delaware LLC Act.
Section 2.8 Title to Company Assets.
Title to Company assets, whether real, personal or mixed and whether
tangible or intangible, shall be deemed to be owned by the Company as an entity,
and no Member, individually or collectively, shall have any ownership interest
in such Company assets or any portion thereof.
ARTICLE III
RIGHTS OF MEMBERS
Section 3.1 Limitation of Liability.
The Members shall have no liability under this Agreement except as
expressly provided in this Agreement or in the Delaware LLC Act.
Section 3.2 Outside Activities of the Members.
Subject to the provisions of Section 7.5 and the Omnibus Agreement,
which shall continue to be applicable to the Persons referred to therein,
regardless of whether such Persons shall also be Members or Assignees, any
Member or Assignee shall be entitled to and may have business interests and
engage in business activities in addition to those relating to the Company,
including business interests and activities in direct competition with the
Company Group. Neither the Company nor any other Member or Assignee shall have
any rights by virtue of this Agreement in any business ventures of any Member or
Assignee.
Section 3.3 Rights of Members.
(a) In addition to other rights provided by this
Agreement or by applicable law, and except as limited by Section 3.3(b), each
Member shall have the right, for a purpose reasonably related to such Member's
interest as a member in the Company, upon reasonable written demand and at such
Member's own expense:
(i) to obtain true and full information
regarding the status of the business and financial condition
of the Company;
(ii) promptly after becoming available, to obtain
a copy of the Company's federal, state and local income tax
returns for each year;
(iii) to have furnished to him a current list of
the name and last known business, residence or mailing address
of each Member;
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(iv) to have furnished to him a copy of this
Agreement and the Certificate of Formation and all amendments
thereto, together with a copy of the executed copies of all
powers of attorney pursuant to which this Agreement, the
Certificate of Formation and all amendments thereto have been
executed;
(v) to obtain true and full information
regarding the amount of cash and a description and statement
of the Capital Contributions made by each Member and which
each Member has agreed to contribute in the future, and the
date on which each became a Member; and
(vi) to obtain such other information regarding
the affairs of the Company as is just and reasonable.
(b) The Managing Member may keep confidential from the
Members and Assignees, for such period of time as the Managing Member deems
reasonable, (i) any information that the Managing Member reasonably believes to
be in the nature of trade secrets or (ii) other information the disclosure of
which the Managing Member in good faith believes (A) is not in the best
interests of the Company Group, (B) could damage the Company Group or (C) that
any Group Member is required by law or by agreement with any third party to keep
confidential (other than agreements with Affiliates of the Company the primary
purpose of which is to circumvent the obligations set forth in this Section
3.3).
ARTICLE IV
TRANSFERS OF INTERESTS
Section 4.1 Transfer Generally.
(a) The term "transfer," when used in this Agreement with
respect to a Membership Interest, shall be deemed to refer to a transaction by
which the holder of a Membership Interest assigns such Membership Interest to
another Person who is or becomes a Member or an Assignee, and includes a sale,
assignment, gift, pledge, encumbrance, hypothecation, mortgage, exchange or any
other disposition by law or otherwise.
(b) No Membership Interest shall be transferred, in whole
or in part, except in accordance with the terms and conditions set forth in this
Article IV. Any transfer or purported transfer of a Membership Interest not made
in accordance with this Article IV shall be null and void.
(c) Nothing contained in this Agreement shall be
construed to prevent a disposition by any partner in the Managing Member of any
or all of the issued and outstanding partnership interests in the Managing
Member.
Section 4.2 Transfer of Membership Interests.
A Member may transfer all, but not less than all, of its Membership
Interest in connection with the merger, consolidation or other combination of
such Member with or into any other
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Person or the transfer by such Member of all or substantially all of its assets
to another Person, and following any such transfer such Person may become a
Substituted Member pursuant to Article XI. Except as set forth in the
immediately preceding sentence and in Section 5.2, or in connection with any
pledge of (or any related foreclosure on) a Member's Membership Interest solely
for the purpose of securing, directly or indirectly, indebtedness of the
Company, the MLP or such Member, and except for the transfers contemplated by
Sections 5.2 and 11.1, a Member may not transfer all or any part of its
Membership Interest or withdraw from the Company.
Section 4.3 Restrictions on Transfers.
(a) Notwithstanding the other provisions of this Article
IV, no transfer of any Membership Interest shall be made if such transfer would
(i) violate the then applicable federal or state securities laws or rules and
regulations of the Commission, any state securities commission or any other
governmental authority with jurisdiction over such transfer, (ii) terminate the
existence or qualification of the Company or the OLP under the laws of the
jurisdiction of its formation or (iii) cause the Company or the OLP to be
treated as an association taxable as a corporation or otherwise to be taxed as
an entity for federal income tax purposes (to the extent not already so treated
or taxed).
(b) The Managing Member may impose restrictions on the
transfer of Membership Interests if a subsequent Opinion of Counsel determines
that such restrictions are necessary to avoid a significant risk of the Company
or the MLP becoming taxable as a corporation or otherwise to be taxed as an
entity for federal income tax purposes. The restrictions may be imposed by
making such amendments to this Agreement as the Managing Member may determine to
be necessary or appropriate to impose such restrictions.
ARTICLE V
CAPITAL CONTRIBUTIONS AND ISSUANCE OF INTERESTS
Section 5.1 Initial Capital Contributions.
On April 16, 2004, in connection with the formation of the Company
under the Delaware LLC Act, the MLP made an initial Capital Contribution to the
Company of $1,000 in exchange for all of the Membership Interests.
Section 5.2 Closing Capital Contributions.
On the Closing Date and pursuant to the Contribution Agreement:
(a) the MLP General Partner shall contribute to the MLP,
as a Capital Contribution, all of its ownership interests in Pipeline Assets,
L.P., Pipeline GP, L.L.C., Navajo Southern, L.P. and Pipeline, L.L.C. in
exchange for (i) 2% general partner interest, subject to all of the rights,
privileges and duties of the MLP General Partner under the MLP Agreement, (ii)
the Incentive Distribution Rights, (iii) _______ Common Units, (iv) _______
Subordinated Units, (v) the right to be reimbursed for $_______ million in
capital expenditures; and (vi) $______ million in cash;
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(b) Xxxxx Corporation shall contribute to the MLP , as a
Capital Contribution, all of its interest in Mountain Home, L.L.C. in exchange
for (i) _________ Common Units, (ii) _________ Subordinated Units, and (iii) the
right to be reimbursed for $________ million in capital expenditures; and
(c) Navajo Refining Company, L.P. shall contribute to the
MLP as a capital contribution all of its interests in Refining Assets, L.P.,
Refining GP, L.L.C. and Xxxxx Cross, L.L.C. in exchange for (i) ______
Subordinated Units, (ii) ________ Common Units and (iii) the right to be
reimbursed for $______ million in capital expenditures.
(d) Following the Closing, the Managing Member shall hold
100% of the Membership Interests.
Section 5.3 Additional Capital Contributions.
With the consent of the Managing Member, any Member may, but shall not
be obligated to, make additional Capital Contributions to the Company.
Section 5.4 Interest and Withdrawal.
No interest shall be paid by the Company on Capital Contributions. No
Member or Assignee shall be entitled to the withdrawal or return of its Capital
Contribution, except to the extent, if any, that distributions made pursuant to
this Agreement or upon termination of the Company may be considered as such by
law and then only to the extent provided for in this Agreement. Except to the
extent expressly provided in this Agreement, no Member or Assignee shall have
priority over any other Member or Assignee either as to the return of Capital
Contributions or as to profits, losses or distributions. Any such return shall
be a compromise to which all Members or Assignees agree within the meaning of
Section 18-502(b) of the Delaware LLC Act.
Section 5.5 Loans from Members.
Loans by a Member to the Company shall not constitute Capital
Contributions. If any Member shall advance funds to the Company in excess of the
amounts required hereunder to be contributed by it to the capital of the
Company, the making of such excess advances shall not result in any increase in
the amount of the Capital Account of such Member. The amount of any such excess
advances shall be a debt obligation of the Company to such Member and shall be
payable or collectible only out of the Company assets in accordance with the
terms and conditions upon which such advances are made.
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Section 5.6 Issuances of Additional Company Securities.
(a) The Company may issue additional Company Securities
and options, rights, warrants and appreciation rights relating to the Company
Securities for any Company purpose at any time and from time to time to such
Persons for such consideration and on such terms and conditions as shall be
established by the Managing Member and approved by the Members. The issuance by
the Company of Company Securities or rights, warrants or appreciation rights in
respect thereof shall be deemed an amendment to this Agreement.
(b) Each additional Company Security authorized to be
issued by the Company pursuant to Section 5.6(a) may be issued in one or more
classes, or one or more series of any such classes, with such designations,
preferences, rights, powers and duties (which may be senior to existing classes
and series of Company Securities), as shall be fixed by the Managing Member and
approved by the Members, including (i) the right to share Company profits and
losses or items thereof; (ii) the right to share in Company distributions; (iii)
the rights upon dissolution and liquidation of the Company; (iv) whether, and
the terms and conditions upon which, the Company may redeem such Company
Security; (v) whether such Company Security is issued with the privilege of
conversion or exchange and, if so, the terms and conditions of such conversion
or exchange; (vi) the terms and conditions upon which each Company Security will
be issued, evidenced by certificates and assigned or transferred; and (vii) the
right, if any, of the holder of each such Company Security to vote on Company
matters, including matters relating to the relative designations, preferences,
rights, powers and duties of such Company Security.
(c) The Managing Member is hereby authorized and directed
to take all actions that it deems necessary or appropriate in connection with
(i) each issuance of Company Securities and options, rights, warrants and
appreciation rights relating to Company Securities pursuant to this Section 5.6;
(ii) the admission of Additional Members; and (iii) all additional issuances of
Company Securities. The Managing Member is further authorized and directed to
specify the relative rights, powers and duties of the holders of the Membership
Interests or other Company Securities being so issued. The Managing Member shall
do all things necessary to comply with the Delaware LLC Act and is authorized
and directed to do all things it deems necessary or advisable in connection with
any future issuance of Company Securities, including compliance with any
statute, rule, regulation or guideline of any federal, state or other
governmental agency.
Section 5.7 Limited Preemptive Rights.
No Person shall have preemptive, preferential or other similar rights
with respect to (a) additional Capital Contributions; (b) issuance or sale of
any class or series of Membership Interests, whether unissued, held in the
treasury or hereafter created; (c) issuance of any obligations, evidences of
indebtedness or other securities of the Company convertible into or exchangeable
for, or carrying or accompanied by any rights to receive, purchase or subscribe
to, any such Membership Interests; (d) issuance of any right of subscription to
or right to receive, or any warrant or option for the purchase of, any such
Membership Interests; or (e) issuance or sale of any other securities that may
be issued or sold by the Company.
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Section 5.8 Fully Paid and Non-Assessable Nature of Membership Interests.
All Membership Interests issued pursuant to, and in accordance with the
requirements of this Article V shall be fully paid and non-assessable Membership
Interests, except as such non-assessability may be affected by Section 18-607 of
the Delaware LLC Act.
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
Section 6.1 Allocations.
All income, gain, loss, deductions and items of income shall be
allocated to the Members in proportion to their ownership of the Membership
Interests unless otherwise required by the Code.
Section 6.2 Distributions.
(a) From time to time the Managing Member may cause the
Company to make distributions to the Members in proportion to the Members'
Percentage Interests.
(b) The Managing Member shall have the discretion to
treat taxes paid by the Company on behalf of, or amounts withheld with respect
to, all or less than all of the Members, as a distribution to such Members.
ARTICLE VII
MANAGEMENT AND OPERATION OF BUSINESS
Section 7.1 Management.
(a) The Company shall be managed by the Managing Member.
Except as otherwise expressly provided in this Agreement, all management powers
over the business and affairs of the Company shall be exclusively vested in the
Managing Member, and no other Member shall have any management power or control
over the business and affairs of the Company. Under the direction of the
Managing Member, the day-to-day activities of the Company shall be conducted on
the Company's behalf by the Officers, who shall be agents of the Company.
(b) In addition to the powers now or hereafter granted a
manager of a limited liability company under applicable law or which are granted
to the Managing Member under any other provisions of this Agreement, the
Managing Member, subject to Section 7.3, and the Officers, subject to Article
VIII and the direction of the Managing Member, shall have full power and
authority to do all things and on such terms as they may deem necessary or
appropriate to conduct the business of the Company, to exercise all powers set
forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4,
including the following:
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(i) the making of any expenditures, the lending
or borrowing of money, the assumption or guarantee of, or
other contracting for, indebtedness and other liabilities, the
issuance of evidences of indebtedness, including indebtedness
that is convertible into a Membership Interest, and the
incurring of any other obligations;
(ii) the making of tax, regulatory and other
filings, or rendering of periodic or other reports to
governmental or other agencies having jurisdiction over the
business or assets of the Company;
(iii) the acquisition, disposition, mortgage,
pledge, encumbrance, hypothecation or exchange of any or all
of the assets of the Company or the merger or other
combination of the Company with or into another Person;
(iv) the use of the assets of the Company
(including cash on hand) for any purpose consistent with the
terms of this Agreement, including the financing of the
conduct of the operations of the Company Group, the lending of
funds to other Persons (including the OLP or any Group
Member), the repayment of obligations of the OLP or the
Company Group and the making of capital contributions to any
Group Member;
(v) the negotiation, execution and performance
of any contracts, conveyances or other instruments (including
instruments that limit the liability of the Company under
contractual arrangements to all or particular assets of the
Company, with the other party to the contract to have no
recourse against the OLP or its assets other than its interest
in the Company, even if same results in the terms of the
transaction being less favorable to the Company than would
otherwise be the case);
(vi) the distribution of Company cash;
(vii) the selection and dismissal of Officers and
agents, outside attorneys, accountants, consultants and
contractors and the determination of their compensation and
other terms of employment or hiring;
(viii) the maintenance of such insurance for the
benefit of the Company Group and the Members as it deems
necessary or appropriate;
(ix) the formation of, or acquisition of an
interest in, and the contribution of property and the making
of loans to, any further limited or general partnerships,
joint ventures, corporations or other Persons subject to the
restrictions set forth in Section 2.4;
(x) the control of any matters affecting the
rights and obligations of the Company, including the bringing
and defending of actions at law or in
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equity and otherwise engaging in the conduct of litigation and
the incurring of legal expense and the settlement of claims
and litigation;
(xi) the indemnification of any Person against
liabilities and contingencies to the extent permitted by law;
(xii) the purchase, sale or other acquisition or
disposition of Membership Interests, or the issuance of
additional options, rights, warrants and appreciation rights
relating to Membership Interests; and
(xiii) the undertaking of any action in connection
with the Company's participation in its Subsidiaries as the
sole member or stockholder.
(c) Notwithstanding any other provision of this
Agreement, the MLP Agreement, the Delaware LLC Act or any applicable law, rule
or regulation, each Member and each other Person who may acquire a Membership
Interest hereby (i) approves, ratifies and confirms the execution, delivery and
performance by the parties thereto of the Underwriting Agreement, the Omnibus
Agreement, the Contribution and Conveyance Agreement, the Credit Agreement and
the other agreements and documents described in or filed as exhibits to the
Registration Statement that are related to the transactions contemplated by the
Registration Statement; (ii) agrees that the Managing Member is authorized to
execute, deliver and perform the agreements referred to in clause (i) of this
sentence and the other agreements, acts, transactions and matters described in
or contemplated by the Registration Statement on behalf of the Company without
any further act, approval or vote of the Members or Assignees or the other
Persons who may acquire an interest in the Company; and (iii) agrees that the
execution, delivery or performance by the Managing Member, any Group Member or
any Affiliate of any of them, of this Agreement or any agreement authorized or
permitted under this Agreement (including the exercise by the Managing Member of
the rights accorded pursuant to Article XV), shall not constitute a breach by
the Managing Member of any duty that the Managing Member may owe the Company or
the Members or any other Persons under this Agreement (or any other agreements)
or of any duty stated or implied by law or equity.
Section 7.2 Certificate of Formation.
The MLP caused the Certificate of Formation to be filed with the
Secretary of State of the State of Delaware as required by the Delaware LLC Act
and certain other certificates or documents it determined in its sole discretion
to be necessary or appropriate for the qualification and operation of the
Company in certain other states. The Managing Member shall use all reasonable
efforts to cause to be filed such additional certificates or documents as may be
determined by the Managing Member in its sole discretion to be reasonable and
necessary or appropriate for the formation, continuation, qualification and
operation of a limited liability company in the State of Delaware or any other
state in which the Company may elect to do business or own property. To the
extent that such action is determined by the Managing Member in its sole
discretion to be reasonable and necessary or appropriate, the Managing Member
shall file amendments to and restatements of the Certificate of Formation and do
all things to maintain
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the Company as a limited liability company under the laws of the State of
Delaware or of any other state in which the Company may elect to do business or
own property. Subject to the terms of Section 3.3(a), the Managing Member shall
not be required, before or after filing, to deliver or mail a copy of the
Certificate of Formation, any qualification document or any amendments thereto
to any Member or Assignee.
Section 7.3 Restrictions on Managing Member's Authority.
(a) The Managing Member may not, without written approval
of the specific act by the Members, take any action in contravention of this
Agreement, including, except as otherwise provided in this Agreement (i)
committing any act that would make it impossible to carry on the ordinary
business of the Company; (ii) possessing Company property, or assigning any
rights in specific Company property, for other than a Company purpose; (iii)
admitting a Person as a Member; or (iv) amending this Agreement in any manner.
(b) Except as provided in Articles XIII and XV, the
Managing Member may not sell, exchange or otherwise dispose of all or
substantially all of the Company's assets in a single transaction or a series of
related transactions (including by way of merger, consolidation or other
combination) or approve on behalf of the Company the sale, exchange or other
disposition of all or substantially all of the assets of the Company, without
the approval of the Members; provided, however, that this provision shall not
preclude or limit the Managing Member's ability to mortgage, pledge, hypothecate
or grant a security interest in all or substantially all of the assets of the
Company and shall not apply to any forced sale of any or all of the assets of
the Company pursuant to the foreclosure of, or other realization upon, any such
encumbrance.
Section 7.4 Reimbursement of the General Partner; Benefit Plans.
(a) The General Partner shall be reimbursed on a monthly
basis, or such other reasonable basis as the Managing Member may determine in
its sole discretion (i) for all direct and indirect expenses it incurs or
payments it makes on behalf of the Company (including salary, bonus, incentive
compensation and other amounts paid to any Person including Affiliates of the
General Partner to perform services for the Company or for the Managing Member
in the discharge of its duties to the Company); and (ii) for all other necessary
or appropriate expenses allocable to the Company or otherwise reasonably
incurred by the General Partner in furtherance of the Company's business
(including expenses allocated to the General Partner by its Affiliates).
Reimbursements pursuant to this Section 7.4 shall be in addition to any
reimbursement to the General Partner as a result of indemnification pursuant to
Section 7.7.
(b) The Managing Member, in its sole discretion and
without the approval of any Member (who shall have no right to vote in respect
thereof), may propose and adopt on behalf of the Company employee benefit plans,
employee programs and employee practices, or cause the Company to issue Company
Securities, in connection with or pursuant to any employee benefit plan,
employee program or employee practice maintained or sponsored by any Group
Member or any Affiliate thereof, in each case for the benefit of employees of
the General
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Partner, any Group Member or any Affiliate thereof, or any of them, in respect
of services performed, directly or indirectly, for the benefit of the Company
Group.
Section 7.5 Outside Activities.
(a) Except as specifically restricted by the Omnibus
Agreement, each Indemnitee shall have the right to engage in businesses of every
type and description and other activities for profit and to engage in and
possess an interest in other business ventures of any and every type or
description, whether in businesses engaged in or anticipated to be engaged in by
any Group Member, independently or with others, including business interests and
activities in direct competition with the business and activities of any Group
Member, and none of the same shall constitute a breach of this Agreement or any
duty express or implied by law to any Group Member or any Member or Assignee.
Neither any Group Member, any Member nor any other Person shall have any rights
by virtue of this Agreement or the relationship established hereby in any
business ventures of any Indemnitee.
(b) Subject to the terms of Section 7.5(a) and the
Omnibus Agreement, but otherwise notwithstanding anything to the contrary in
this Agreement, (i) the engaging in competitive activities by any Indemnitee in
accordance with the provisions of this Section 7.5 is hereby approved by the
Company and all Members; (ii) it shall be deemed not to be a breach of the
Managing Member's fiduciary duty or any other obligation of any type whatsoever
of the Managing Member for the Indemnitees to engage in such business interests
and activities in preference to or to the exclusion of the Company; and (iii)
the Indemnitees shall have no obligation to present business opportunities to
the Company.
(c) Anything in this Agreement to the contrary
notwithstanding, to the extent that provisions of this Agreement purport or are
interpreted to have the effect of restricting the fiduciary duties that might
otherwise, as a result of Delaware or other applicable law, be owed by the
Managing Member to the Company and its Members, or to constitute a waiver or
consent by the Members to any such restriction, such provisions shall be
inapplicable and have no effect in determining whether the Managing Member has
complied with its fiduciary duties in connection with determinations made by it
under this Section 7.5.
Section 7.6 Loans from the General Partner; Loans or Contributions from the
Company; Contracts with Affiliates.
(a) The General Partner or its Affiliates may lend to any
Group Member, and any Group Member may borrow from the Company or any of its
Affiliates, funds needed or desired by any Group Member for such periods of time
and in such amounts as the Managing Member may determine; provided, however,
that in any such case the lending party may not charge the borrowing party
interest at a rate greater than the rate that would be charged the borrowing
party or impose terms less favorable to the borrowing party than would be
charged or imposed on the borrowing party by unrelated lenders on comparable
loans made on an arm's-length basis (without reference to the lending party's
financial abilities or guarantees). The borrowing party shall reimburse the
lending party for any costs (other than any additional interest
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costs) incurred by the lending party in connection with the borrowing of such
funds. For purposes of this Section 7.6(a) and Section 7.6(b), the term "Group
Member" shall include any Affiliate of a Group Member that is controlled by the
Group Member. No Group Member may lend funds to the General Partner or any of
its Affiliates (other than the MLP, a subsidiary of the MLP or another Group
Member).
(b) The General Partner may itself, or may enter into an
agreement with any of its Affiliates to, render services to a Group Member or to
the OLP in the discharge of its duties as the General Partner of the OLP. Any
services rendered to a Group Member by the General Partner or any of its
Affiliates shall be on terms that are fair and reasonable to the Company,
provided, however, that the requirements of this Section 7.6(b) shall be deemed
satisfied as to (i) any transaction approved by Special Approval; (ii) any
transaction, the terms of which are not less favorable to the Company Group than
those generally being provided to or available from unrelated third parties; or
(iii) any transaction that, taking into account the totality of the
relationships between the parties involved (including other transactions that
may be particularly favorable or advantageous to the Company Group), is
equitable to the Company Group. The provisions of Section 7.4 shall apply to the
rendering of services described in this Section 7.6(b).
(c) The Company may lend or contribute to any Group
Member, and any Group Member may borrow from the Company, funds on terms and
conditions established in the sole discretion of the Managing Member; provided,
however, that the Company may not charge the Group Member interest at a rate
less than the rate that would be charged to the Group Member by unrelated
lenders on comparable loans. The foregoing authority shall be exercised by the
Managing Member in its sole discretion and shall not create any right or benefit
in favor of any Group Member or any other Person.
(d) The Company Group may transfer assets to joint
ventures, other partnerships, corporations, limited liability companies or other
business entities in which it is or thereby becomes a participant upon such
terms and subject to such conditions as are consistent with this Agreement and
applicable law.
(e) Neither the General Partner nor any of its Affiliates
shall sell, transfer or convey any property to, or purchase any property from,
the Company, directly or indirectly, except pursuant to transactions that are
fair and reasonable to the Company; provided, however, that the requirements of
this Section 7.6(e) shall be deemed to be satisfied as to (i) the transactions
effected pursuant to Section 5.2 and the Contribution and Conveyance Agreement
and any other transactions described in or contemplated by the Registration
Statement; (ii) any transaction approved by Special Approval; (iii) any
transaction, the terms of which are no less favorable to the Company than those
generally being provided to or available from unrelated third parties; or (iv)
any transaction that, taking into account the totality of the relationships
between the parties involved (including other transactions that may be
particularly favorable or advantageous to the Company), is equitable to the
Company.
(f) The General Partner and its Affiliates will have no
obligation to permit any Group Member to use any facilities or assets of the
General Partner and its Affiliates, except
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as may be provided in contracts entered into from time to time specifically
dealing with such use, nor shall there be any obligation on the part of the
General Partner or its Affiliates to enter into such contracts.
(g) Without limitation of Sections 7.5(a) through 7.5(f),
and notwithstanding anything to the contrary in this Agreement, the existence of
the conflicts of interest described in the Registration Statement are hereby
approved by all Members.
Section 7.7 Indemnification.
(a) To the fullest extent permitted by law but subject to
the limitations expressly provided in this Agreement, all Indemnitees shall be
indemnified and held harmless by the Company from and against any and all
losses, claims, damages, liabilities, joint or several, expenses (including
legal fees and expenses), judgments, fines, penalties, interest, settlements or
other amounts arising from any and all claims, demands, actions, suits or
proceedings, whether civil, criminal, administrative or investigative, in which
any Indemnitee may be involved, or is threatened to be involved, as a party or
otherwise, by reason of its status as an Indemnitee; provided, that in each case
the Indemnitee acted in good faith and in a manner that such Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the
Company and, with respect to any criminal proceeding, had no reasonable cause to
believe its conduct was unlawful; provided, further, no indemnification pursuant
to this Section 7.7 shall be available to GP LLC or the General Partner with
respect to their respective obligations incurred pursuant to the Underwriting
Agreement or the Contribution and Conveyance Agreement (other than obligations
incurred by the General Partner on behalf of the MLP or the Company). The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere, or its equivalent, shall not
create a presumption that the Indemnitee acted in a manner contrary to that
specified above. Any indemnification pursuant to this Section 7.7 shall be made
only out of the assets of the Company, it being agreed that neither GP LLC nor
the General Partner shall be personally liable for such indemnification and
shall have only obligation to contribute or loan any monies or property to the
Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses
(including legal fees and expenses) incurred by an Indemnitee who is indemnified
pursuant to Section 7.7(a) in defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the Company prior to the
final disposition of such claim, demand, action, suit or proceeding upon receipt
by the Company of any undertaking by or on behalf of the Indemnitee to repay
such amount if it shall be determined that the Indemnitee is not entitled to be
indemnified as authorized in this Section 7.7.
(c) The indemnification provided by this Section 7.7
shall be in addition to any other rights to which an Indemnitee may be entitled
under any agreement, pursuant to any vote of the Members, as a matter of law or
otherwise, both as to actions in the Indemnitee's capacity as an Indemnitee and
as to actions in any other capacity (including any capacity under the
Underwriting Agreement and the Credit Agreement), and shall continue as to an
Indemnitee
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who has ceased to serve in such capacity and shall inure to the benefit of the
heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse
GP LLC, the General Partner, the Managing Member or their Affiliates for the
cost of) insurance, on behalf of the Managing Member, its Affiliates and such
other Persons as the Managing Member shall determine, against any liability that
may be asserted against or expense that may be incurred by such Person in
connection with the Company's activities or such Person's activities on behalf
of the Company, regardless of whether the Company would have the power to
indemnify such Person against such liability under the provisions of this
Agreement.
(e) For purposes of this Section 7.7, the Company shall
be deemed to have requested an Indemnitee to serve as fiduciary of an employee
benefit plan whenever the performance by it of its duties to the Company also
imposes duties on, or otherwise involves services by, it to the plan or
participants or beneficiaries of the plan; excise taxes assessed on an
Indemnitee with respect to an employee benefit plan pursuant to applicable law
shall constitute "fines" within the meaning of Section 7.7(a); and action taken
or omitted by it with respect to any employee benefit plan in the performance of
its duties for a purpose reasonably believed by it to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be for a purpose
which is in, or not opposed to, the best interests of the Company.
(f) In no event may an Indemnitee subject the Members to
personal liability by reason of the indemnification provisions set forth in this
Agreement.
(g) An Indemnitee shall not be denied indemnification in
whole or in part under this Section 7.7 because the Indemnitee had an interest
in the transaction with respect to which the indemnification applies if the
transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 7.7 are for the
benefit of the Indemnitees, their heirs, successors, assigns and administrators
and shall not be deemed to create any rights for the benefit of any other
Persons.
(i) No amendment, modification or repeal of this Section
7.7 or any provision hereof shall in any manner terminate, reduce or impair the
right of any past, present or future Indemnitee to be indemnified by the
Company, nor the obligations of the Company to indemnify any such Indemnitee
under and in accordance with the provisions of this Section 7.7 as in effect
immediately prior to such amendment, modification or repeal with respect to
claims arising from or relating to matters occurring, in whole or in part, prior
to such amendment, modification or repeal, regardless of when such claims may
arise or be asserted.
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Section 7.8 Liability of Indemnitees.
(a) Notwithstanding anything to the contrary set forth in
this Agreement or the MLP Agreement, no Indemnitee shall be liable for monetary
damages to the Company, any Members, the Assignees or any other Persons who have
acquired interests in the Company or MLP Securities, or any securities issued by
the OLP, for losses sustained or liabilities incurred as a result of any act or
omission if such Indemnitee acted in good faith.
(b) Subject to its obligations and duties set forth in
Section 7.1(a), the Managing Member may exercise any of the powers granted to it
by this Agreement and perform any of the duties imposed upon it hereunder either
directly or by or through its agents, and the Managing Member shall not be
responsible for any misconduct or negligence on the part of any such agent
appointed by the Managing Member in good faith.
(c) To the extent that, at law or in equity, an
Indemnitee has duties (including fiduciary duties) and liabilities relating
thereto to the Company or to the Members, the Managing Member and any other
Indemnitee acting in connection with the Company's business or affairs shall not
be liable to the Company or to any Member for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent
that they restrict or otherwise modify the duties and liabilities of an
Indemnitee otherwise existing at law or in equity, are agreed by the Members to
replace such other duties and liabilities of such Indemnitee.
(d) Any amendment, modification or repeal of this Section
7.8 or any provision hereof shall be prospective only and shall not in any way
affect the limitations on the liability to the Company, the Members, the
Managing Member, and the Member's directors, officers and employees under this
Section 7.8 as in effect immediately prior to such amendment, modification or
repeal with respect to claims arising from or relating to matters occurring, in
whole or in part, prior to such amendment, modification or repeal, regardless of
when such claims may arise or be asserted.
Section 7.9 Other Matters Concerning the Managing Member.
(a) The Managing Member may rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, debenture or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(b) The Managing Member may consult with legal counsel,
accountants, appraisers, management consultants, investment bankers and other
consultants and advisers selected by it, and any act taken or omitted to be
taken in reliance upon the opinion (including an Opinion of Counsel) of such
Persons as to matters that the Managing Member reasonably believes to be within
such Person's professional or expert competence shall be conclusively presumed
to have been done or omitted in good faith and in accordance with such opinion.
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(c) The Managing Member shall have the right, in respect
of any of its powers or obligations hereunder, to act through any of its duly
authorized officers, a duly appointed attorney or attorneys-in-fact or the duly
authorized officers of the Company.
(d) Any standard of care and duty imposed by this
Agreement or under the Delaware LLC Act or any applicable law, rule or
regulation shall be modified, waived or limited, to the extent permitted by law,
as required to permit the Managing Member to act under this Agreement or any
other agreement contemplated by this Agreement and to make any decision pursuant
to the authority prescribed in this Agreement, so long as such action is
reasonably believed by the Managing Member to be in, or not inconsistent with,
the best interests of the Company.
Section 7.10 Reliance by Third Parties.
Notwithstanding anything to the contrary in this Agreement, any Person
dealing with the Company shall be entitled to assume that the Managing Member
and any Officer authorized by the Managing Member to act on behalf of and in the
name of the Company has full power and authority to encumber, sell or otherwise
use in any manner any and all assets of the Company and to enter into any
authorized contracts on behalf of the Company, and such Person shall be entitled
to deal with the Managing Member or any such Officer as if it were the Company's
sole party in interest, both legally and beneficially. Each Member hereby waives
any and all defenses or other remedies that may be available against such Person
to contest, negate or disaffirm any action of the Managing Member or any such
officer in connection with any such dealing. In no event shall any Person
dealing with the Managing Member or any such officer or its representatives be
obligated to ascertain that the terms of the Agreement have been complied with
or to inquire into the necessity or expedience of any act or action of the
Managing Member or any such officer or its representatives. Each and every
certificate, document or other instrument executed on behalf of the Company by
the Managing Member or its representatives shall be conclusive evidence in favor
of any and every Person relying thereon or claiming thereunder that (a) at the
time of the execution and delivery of such certificate, document or instrument,
this Agreement was in full force and effect; (b) the Person executing and
delivering such certificate, document or instrument was duly authorized and
empowered to do so for and on behalf of the Company; and (c) such certificate,
document or instrument was duly executed and delivered in accordance with the
terms and provisions of this Agreement and is binding upon the Company.
ARTICLE VIII
OFFICERS
Section 8.1 Officers.
(a) Generally. The Managing Member, as set forth below,
shall appoint agents of the Company, referred to as "Officers" of the Company as
described in this Section 8.1, who shall be responsible for the day-to-day
business affairs of the Company and the OLP, subject to the overall direction
and control of the Managing Member. Unless provided otherwise
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by Managing Member, the Officers shall have the titles, power, authority and
duties described below in this Section 8.1.
(b) Titles and Number. The Officers shall be the
Chairman, President, any and all Vice Presidents, the Secretary and any and all
Assistant Secretaries and any Treasurer and any and all Assistant Treasurers and
any other Officers appointed pursuant to this Section 8.1. There shall be
appointed from time to time, in accordance with this Section 8.1, such Vice
Presidents, Secretaries, Assistant Secretaries, Treasurers and Assistant
Treasurers as the Managing Member may desire. Any person may hold two or more
offices.
(i) Chairman. The Managing Member may elect an
individual to serve as Chairman. If a Chairman is elected and
acting, the Chairman shall, subject to the direction of the
Managing Member, be the chief policy making officer of the
Company and shall have power and final authority over all of
the Company's affairs and business. The Chairman shall have
the nonexclusive authority to sign on behalf of the Company
any deeds, mortgages, leases, bonds, notes, certificates,
contracts or other instruments, except in cases where the
execution thereof shall be expressly delegated by the Managing
Member or by this Agreement to some other officer or agent of
the Company or shall be required by law to be otherwise
executed. In general, the Chairman shall perform any duties
necessary for the operation and management of the Company and
such other duties as may be prescribed from time to time by
the Managing Member.
(ii) President. The Managing Member shall elect
an individual to serve as President. In general, the
President, subject to the direction and supervision of the
Managing Member and the Chairman, if there shall be one, shall
be the chief executive officer of the Company and shall have
general and active control of its affairs and business and
general supervision of its officers, agents and employees, and
shall perform all duties incident to the office of President
of the Company and such other duties as may be prescribed from
time to time by the Chairman or the Managing Member. The
President shall have the nonexclusive authority to sign on
behalf of the Company any deeds, mortgages, leases, bonds,
notes, certificates, contracts or other instruments, except in
cases where the execution thereof shall be expressly delegated
by the Managing Member or by this Agreement to some other
officer or agent of the Company or shall be required by law to
be otherwise executed. In the absence of the Chairman or in
the event of the Chairman's inability or refusal to act, the
President shall perform the duties of the Chairman, and the
President, when so acting, shall have all of the powers and be
subject to all the restrictions upon the Chairman.
(iii) Vice Presidents. The Managing Member, in its
discretion, may elect one or more Vice Presidents. In the
absence of the President or in the event of the President's
inability or refusal to act, the Vice President (or in the
event there be more than one vice president, the vice
presidents in the order designated, or in the absence of any
designation, then in the order of their election) shall
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perform the duties of the President, and the Vice President,
when so acting, shall have all of the powers and be subject to
all the restrictions upon the President. Each Vice President
shall perform such other duties as from time to time may be
assigned by the President or the Managing Member.
(iv) Secretary and Assistant Secretaries. The
Managing Member, in its discretion, may elect a Secretary and
one or more Assistant Secretaries. The Secretary shall record
or cause to be recorded in books provided for that purpose the
minutes of the meetings or actions of the Managing Member and
of the Members, shall see that all notices are duly given in
accordance with the provisions of this Agreement and as
required by law, shall be custodian of all records (other than
financial), shall see that the books, reports, statements,
certificates and all other documents and records required by
law are properly kept and filed, and, in general, shall
perform all duties incident to the office of Secretary and
such other duties as may, from time to time, be assigned to
him by this Agreement, the Managing Member or the President.
The Assistant Secretaries shall exercise the powers of the
Secretary during that Officer's absence or inability or
refusal to act.
(v) Treasurer and Assistant Treasurers. The
Managing Member, in its discretion, may elect a Treasurer and
one or more Assistant Treasurers. The Treasurer shall keep or
cause to be kept the books of account of the Company and shall
render statements of the financial affairs of the Company in
such form and as often as required by this Agreement, the
Managing Member or the President. The Treasurer, subject to
the order of the Managing Member, shall have the custody of
all funds and securities of the Company. The Treasurer shall
perform all other duties commonly incident to his office and
shall perform such other duties and have such other powers as
this Agreement, the Managing Member or the President, shall
designate from time to time. The Assistant Treasurers shall
exercise the power of the Treasurer during that Officer's
absence or inability or refusal to act. Each of the Assistant
Treasurers shall possess the same power as the Treasurer to
sign all certificates, contracts, obligations and other
instruments of the Company. If no Treasurer or Assistant
Treasurer is appointed and serving or in the absence of the
appointed Treasurer and Assistant Treasurer, the President or
such other Officer as the Managing Member shall select, shall
have the powers and duties conferred upon the Treasurer.
(c) Appointees. The Managing Member hereby designates the
following individuals as Officers of the Company to serve until their successors
are duly appointed by the Managing Member and with the powers and
responsibilities as set forth in Section 8.1(b):
_________________ Chairman
_________________ President and Chief Executive Officer
_________________ Executive Vice President
_________________ Vice President - Operations
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_________________ Vice President and Secretary
_________________ Treasurer
(d) Other Officers and Agents. The Managing Member may
appoint such other Officers and agents as may from time to time appear to be
necessary or advisable in the conduct of the affairs of the Company, who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Managing Member.
(e) Appointment and Term of Office. The Officers shall be
appointed by the Managing Member at such time and for such terms as the Managing
Member shall determine. Any Officer may be removed, with or without cause, only
by the Managing Member. Vacancies in any office may be filled only by the
Managing Member.
(f) Powers of Attorney. The Managing Member may xxxxx
xxxxxx of attorney or other authority as appropriate to establish and evidence
the authority of the Officers and other Persons.
(g) Officers' Delegation of Authority. Unless otherwise
provided by resolution of the Managing Member, no Officer shall have the power
or authority to delegate to any Person such Officer's rights and powers as an
Officer to manage the business and affairs of the Company.
Section 8.2 Compensation.
The Officers shall receive such compensation for their services as may
be designated by the Managing Member. In addition, the Officers shall be
entitled to be reimbursed for out-of-pocket costs and expenses incurred in the
course of their service hereunder.
ARTICLE IX
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Records and Accounting
The Managing Member shall keep or cause to be kept at the principal
office of the Company appropriate books and records with respect to the
Company's business, including all books and records necessary to provide to the
Members any information required to be provided pursuant to Section 3.3(a). Any
books and records maintained by or on behalf of the Company in the regular
course of its business, including books of account and records of Company
proceedings, may be kept on, or be in the form of, computer disks, hard drives,
punch cards, magnetic tape, photographs, micrographics or any other information
storage device; provided, that the books and records so maintained are
convertible into clearly legible written form within a reasonable period of
time. The books of the Company shall be maintained, for financial reporting
purposes, on an accrual basis in accordance with U.S. GAAP.
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Section 9.2 Fiscal Year.
The fiscal year of the Company shall be a fiscal year ending December
31.
ARTICLE X
TAX MATTERS
Section 10.1 Tax Returns and Information.
The Company shall timely file all returns of the Company that are
required for federal, state and local income tax purposes on the basis of the
accrual method and a taxable year ending on December 31. The tax information
reasonably required by the Members for federal and state income tax reporting
purposes with respect to a taxable year shall be furnished to them within 90
days of the close of the calendar year in which the Company's taxable year ends.
The classification, realization and recognition of income, gain, losses and
deductions and other items shall be on the accrual method of accounting for
federal income tax purposes.
Section 10.2 Tax Elections.
(a) The Company shall not elect to be treated as a
corporation under the Code.
(b) Except as otherwise provided herein, the Managing
Member shall determine whether the Company should make any other elections
permitted by the Code.
ARTICLE XI
ADMISSION OF MEMBERS
Section 11.1 Admission of MLP.
Upon the consummation of the transfers and conveyances described in
Section 5.1, the MLP was admitted as a Member and the MLP is now the only Member
of the Company.
Section 11.2 Admission of Substituted Members.
By transfer of a Membership Interest in accordance with Article IV, the
transferor shall be deemed to have given the transferee the right to seek
admission as a Substituted Member subject to the conditions of, and in the
manner permitted under, this Agreement. A transferor of a Membership Interest
shall, however, only have the authority to convey to a purchaser or other
transferee (a) the right to negotiate such Membership Interest to a purchaser or
other transferee and (b) the right to request admission as a Substituted Member
to such purchaser or other transferee in respect of the transferred Membership
Interests. Each transferee of a Membership Interest shall be an Assignee and be
deemed to have applied to become a Substituted Member with respect to the
Interests so transferred to such Person. Such Assignee shall become a
Substituted Member (x) at such time as the Members consent thereto, which
consent may be given or withheld in the Members' discretion, and (y) when any
such admission is shown on the books and records of the Company. If such consent
is withheld, such transferee shall remain an Assignee. An Assignee
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shall have an interest in the Company equivalent to that of a Member with
respect to allocations and distributions, including liquidating distributions,
of the Company. With respect to voting rights attributable to Membership
Interests that are held by Assignees, the Managing Member shall be deemed to be
the Member with respect thereto and shall, in exercising the voting rights in
respect of such Interests on any matter, vote such Membership Interests at the
written direction of the Assignee. If no such written direction is received,
such Membership Interests will not be voted. An Assignee shall have no other
rights of a Member.
Section 11.3 Admission of Additional Members.
(a) A Person (other than a Substituted Member) who makes
a Capital Contribution to the Company or acquires Company Securities in
accordance with this Agreement shall be admitted to the Company as an Additional
Member only upon furnishing to the Managing Member (i) evidence of acceptance in
form satisfactory to the Managing Member of all of the terms and conditions of
this Agreement, including the power of attorney granted in Section 2.6, and (ii)
such other documents or instruments as may be required in the discretion of the
Managing Member to effect such Person's admission as an Additional Member.
(b) Notwithstanding anything to the contrary in this
Section 11.3, no Person shall be admitted as an Additional Member without the
consent of the Managing Member, which consent may be given or withheld in the
Managing Member's discretion. The admission of any Person as an Additional
Member shall become effective on the date upon which the name of such Person is
recorded as such in the books and records of the Company, following the consent
of the Managing Member to such admission.
Section 11.4 Amendment of Agreement and Certificate of Formation.
To effect the admission to the Company of any Member, the Managing
Member shall take all steps necessary and appropriate under the Delaware LLC Act
to amend the records of the Company to reflect such admission and, if necessary,
to prepare as soon as practicable an amendment to this Agreement and, if
required by law, the Managing Member shall prepare and file an amendment to the
Certificate of Formation, and the Managing Member may for this purpose, among
others, exercise the power of attorney granted pursuant to Section 2.6.
ARTICLE XII
WITHDRAWAL OF MEMBERS
Section 12.1 Withdrawal of Members.
Without the prior written consent of the Managing Member, which may be
granted or withheld in its sole discretion, and except as provided in Section
11.1, no Member shall have the right to withdraw from the Company.
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ARTICLE XIII
DISSOLUTION AND LIQUIDATION
Section 13.1 Dissolution.
The Company shall not be dissolved by the admission of Substituted
Members or Additional Members in accordance with the terms of this Agreement.
The Company shall dissolve, and its affairs shall be wound up, upon:
(a) an election to dissolve the Company by the Managing
Member that is approved by all of the Members;
(b) the entry of a decree of judicial dissolution of the
Company pursuant to the provisions of the Delaware LLC Act;
(c) the sale of all or substantially all of the assets
and properties of the Company Group; or
(d) the dissolution of the MLP.
Section 13.2 Liquidator.
Upon dissolution of the Company, the Managing Member shall select one
or more Persons to act as Liquidator. The Liquidator shall be entitled to
receive such compensation for its services as may be approved by a majority of
the Members. The Liquidator shall agree not to resign at any time without 15
days' prior notice and may be removed at any time, with or without cause, by
notice of removal approved by a majority of the Members. Upon dissolution,
removal or resignation of the Liquidator, a successor and substitute Liquidator
(who shall have and succeed to all rights, powers and duties of the original
Liquidator) shall within 30 days thereafter be approved by holders of at least a
majority of the Members. The right to approve a successor or substitute
Liquidator in the manner provided herein shall be deemed to refer also to any
such successor or substitute Liquidator approved in the manner herein provided.
Except as expressly provided in this Article XIII, the Liquidator approved in
the manner provided herein shall have and may exercise, without further
authorization or consent of any of the parties hereto, all of the powers
conferred upon the Managing Member under the terms of this Agreement (but
subject to all of the applicable limitations, contractual and otherwise, upon
the exercise of such powers, other than the limitation on sale set forth in
Section 7.3(a)) to the extent necessary or desirable in the good faith judgment
of the Liquidator to carry out the duties and functions of the Liquidator
hereunder for and during such period of time as shall be reasonably required in
the good faith judgment of the Liquidator to complete the winding up and
liquidation of the Company as provided for herein.
Section 13.3 Liquidation.
The Liquidator shall proceed to dispose of the assets of the Company,
discharge its liabilities, and otherwise wind up its affairs in such manner and
over such period as the
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Liquidator determines to be in the best interest of the Members, subject to
Section 18-804 of the Delaware LLC Act and the following:
(a) The assets may be disposed of by public or private
sale or by distribution in kind to one or more Members on such terms as the
Liquidator and such Member or Members may agree. If any property is distributed
in kind, the Member receiving the property shall be deemed for purposes of
Section 13.3(c) to have received cash equal to its fair market value; and
contemporaneously therewith, appropriate cash distributions must be made to the
other Members. The Liquidator may, in its absolute discretion, defer liquidation
or distribution of the Company's assets for a reasonable time if it determines
that an immediate sale or distribution of all or some of the Company's assets
would be impractical or would cause undue loss to the Members. The Liquidator
may, in its absolute discretion, distribute the Company's assets, in whole or in
part, in kind if it determines that a sale would be impractical or would cause
undue loss to the Members.
(b) Liabilities of the Company include amounts owed to
Members otherwise than in respect of their distribution rights under Article VI.
With respect to any liability that is contingent, conditional or unmatured or is
otherwise not yet due and payable, the Liquidator shall either settle such claim
for such amount as it thinks appropriate or establish a reserve of cash or other
assets to provide for its payment. When paid, any unused portion of the reserve
shall be distributed as additional liquidation proceeds.
(c) All property and all cash in excess of that required
to discharge liabilities as provided in Section 13.3(b) shall be distributed to
the Members in proportion to their ownership interests.
Section 13.4 Cancellation of Certificate of Formation.
Upon the completion of the distribution of Company cash and property as
provided in Section 13.3 in connection with the liquidation of the Company, the
Company shall be terminated and the Certificate of Formation, as well as all
qualifications of the Company as a foreign limited liability company in
jurisdictions other than the State of Delaware, shall be canceled and such other
actions as may be necessary to terminate the Company shall be taken.
Section 13.5 Return of Capital Contributions.
The MLP shall not be personally liable for, and shall have no
obligation to contribute or loan any monies or property to the Company to enable
it to effectuate, the return of the Capital Contributions of the Members, or any
portion thereof, it being expressly understood that any such return shall be
made solely from Company assets.
Section 13.6 Waiver of Partition.
To the maximum extent permitted by law, each Member hereby waives any
right to partition of the Company property.
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Section 13.7 Capital Account Restoration.
No Member shall have any obligation to restore any negative balance in
its Capital Account upon liquidation of the Company.
ARTICLE XIV
AMENDMENT OF AGREEMENT
Section 14.1 Amendment to be Adopted Solely by the Managing Member.
Each Member agrees that the Managing Member, without the approval of
any Member, may amend any provision of this Agreement and execute, swear to,
acknowledge, deliver, file and record whatever documents may be required in
connection therewith, to reflect:
(a) a change in the name of the Company, the location of
the principal place of business of the Company, the registered agent of the
Company or the registered office of the Company;
(b) admission, substitution, withdrawal or removal of
Members in accordance with this Agreement;
(c) a change that, in the sole discretion of the Managing
Member, is necessary or advisable to qualify or continue the qualification of
the Company as a limited liability company in which the Members have limited
liability under the laws of any state or to ensure that neither the Company, the
OLP nor the MLP will be treated as an association taxable as a corporation or
otherwise taxed as an entity for federal income tax purposes;
(d) a change that, in the discretion of the Managing
Member (i) does not adversely affect the Members in any material respect; (ii)
is necessary or advisable to (A) satisfy any requirements, conditions or
guidelines contained in any opinion, directive, order, ruling or regulation of
any federal or state agency or judicial authority or contained in any federal or
state statute (including the Delaware LLC Act) or (B) facilitate the trading of
limited partner interests of the MLP (including the division of any class or
classes of outstanding limited partner interests of the MLP into different
classes to facilitate uniformity of tax consequences within such classes of
limited partner interests of the MLP) or comply with any rule, regulation,
guideline or requirement of any National Securities Exchange on which such
limited partner interests are or will be listed for trading, compliance with any
of which the Managing Member determines in its discretion to be in the best
interests of the MLP and the limited partners of the MLP, (iii) is required to
effect the intent expressed in the Registration Statement or the intent of the
provisions of this Agreement or is otherwise contemplated by this Agreement or
(iv) is required to conform the provisions of this Agreement with the provisions
of the MLP Agreement as the provisions of the MLP Agreement may be amended,
supplemented or restated from time to time;
(e) a change in the fiscal year or taxable year of the
Company and any changes that, in the discretion of the Managing Member, are
necessary or advisable as a result of
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a change in the fiscal year or taxable year of the Company including, if the
Managing Member shall so determine, a change in the definition of "Quarter" and
the dates on which distributions are to be made by the Company;
(f) an amendment that is necessary, in the Opinion of
Counsel, to prevent the Company or its directors, officers, trustees or agents
from in any manner being subjected to the provisions of the Investment Company
Act of 1940, as amended, the Investment Advisers Act of 1940, as amended, or
"plan asset" regulations adopted under the Employee Retirement Income Security
Act of 1974, as amended, regardless of whether such are substantially similar to
plan asset regulations currently applied or proposed by the United States
Department of Labor;
(g) any amendment expressly permitted in this Agreement
to be made by the Managing Member acting alone;
(h) an amendment effected, necessitated or contemplated
by a Merger Agreement approved in accordance with Section 15.3;
(i) an amendment that, in the discretion of the Managing
Member, is necessary or advisable to reflect, account for and deal with
appropriately the formation by the Company of, or investment by the Company in,
any corporation, partnership, joint venture, limited liability company or other
entity, in connection with the conduct by the Company of activities permitted by
the terms of Section 2.4;
(j) a merger or conveyance pursuant to Section 15.3(d);
or
(k) any other amendments substantially similar to the
foregoing.
Section 14.2 Amendment Procedures.
Except with respect to amendments of the type described in Section
14.1, all amendments to this Agreement shall be made in accordance with the
following requirements. Amendments to this Agreement may be proposed only by or
with the consent of the Managing Member which consent may be given or withheld
in its sole discretion. A proposed amendment shall be effective upon its
approval by the Members.
ARTICLE XV
MERGER
Section 15.1 Authority.
The Company may merge or consolidate with one or more corporations,
limited liability companies, business trusts or associations, real estate
investment trusts, common law trusts or unincorporated businesses, including a
general partnership or limited partnership, formed under the laws of the State
of Delaware or any other state of the United States of America, pursuant to a
written agreement of merger or consolidation ("Merger Agreement") in accordance
with this Article XV.
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Section 15.2 Procedure for Merger or Consolidation.
Merger or consolidation of the Company pursuant to this Article XV
requires the prior approval of the Managing Member. If the Managing Member shall
determine, in the exercise of its discretion, to consent to the merger or
consolidation, the Managing Member shall approve the Merger Agreement, which
shall set forth:
(a) The names and jurisdictions of formation or
organization of each of the business entities proposing to merge or consolidate;
(b) The name and jurisdiction of formation or
organization of the business entity that is to survive the proposed merger or
consolidation (the "Surviving Business Entity");
(c) The terms and conditions of the proposed merger or
consolidation;
(d) The manner and basis of exchanging or converting the
equity securities of each constituent business entity for, or into, cash,
property or general or limited partner interests, rights, securities or
obligations of the Surviving Business Entity and (i) if any general or limited
partner interests, securities or rights of any constituent business entity are
not to be exchanged or converted solely for, or into, cash, property or general
or limited partner interests, rights, securities or obligations of the Surviving
Business Entity, the cash, property or general or limited partner interests,
rights, securities or obligations of any limited partnership, corporation, trust
or other entity (other than the Surviving Business Entity) which the holders of
such general or limited partner interests, securities or rights are to receive
in exchange for, or upon conversion of their general or limited partner
interests, securities or rights; and (ii) in the case of securities represented
by certificates, upon the surrender of such certificates, which cash, property
or general or limited partner interests, rights, securities or obligations of
the Surviving Business Entity or any general or limited partnership,
corporation, trust or other entity (other than the Surviving Business Entity),
or evidences thereof, are to be delivered;
(e) A statement of any changes in the constituent
documents or the adoption of new constituent documents (the articles or
certificate of incorporation, articles of trust, declaration of trust,
certificate or agreement of limited partnership or other similar charter or
governing document) of the Surviving Business Entity to be effected by such
merger or consolidation;
(f) The effective time of the merger, which may be the
date of the filing of the certificate of merger pursuant to Section 15.4 or a
later date specified in or determinable in accordance with the Merger Agreement
(provided, that if the effective time of the merger is to be later than the date
of the filing of the certificate of merger, the effective time shall be fixed no
later than the time of the filing of the certificate of merger and stated
therein); and
(g) Such other provisions with respect to the proposed
merger or consolidation as are deemed necessary or appropriate by the Managing
Member.
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Section 15.3 Approval by Members of Merger or Consolidation.
(a) Except as provided in Section 15.3(d), the Managing
Member, upon its approval of the Merger Agreement, shall direct that the Merger
Agreement be submitted to a vote of Members, whether at a special meeting or by
written consent, in either case in accordance with the requirements of Article
XIV. A copy or a summary of the Merger Agreement shall be included in or
enclosed with the notice of a special meeting or the written consent.
(b) Except as provided in Section 15.3(d), the Merger
Agreement shall be approved upon receiving the affirmative vote or consent of
the Members.
(c) Except as provided in Section 15.3(d), after such
approval by vote or consent of the Members, and at any time prior to the filing
of the certificate of merger pursuant to Section 15.4, the merger or
consolidation may be abandoned pursuant to provisions therefor, if any, set
forth in the Merger Agreement.
(d) Notwithstanding anything else contained in this
Article XV or in this Agreement, the Managing Member is permitted, in its
discretion, without Member approval, to merge the Company or any Group Member
into, or convey all of the Company's assets to, another limited liability entity
which shall be newly formed and shall have no assets, liabilities or operations
at the time of such Merger other than those it receives from the Company or
other Group Member if (i) the Managing Member has received an Opinion of Counsel
that the merger or conveyance, as the case may be, would not result in the loss
of the limited liability of any Member or any limited partner in the MLP or
cause the Company, the OLP or the MLP to be treated as an association taxable as
a corporation or otherwise to be taxed as an entity for federal income tax
purposes (to the extent not previously treated as such); (ii) the sole purpose
of such merger or conveyance is to effect a mere change in the legal form of the
Company into another limited liability entity; and (iii) the governing
instruments of the new entity provide the Members with the same rights and
obligations as are herein contained.
Section 15.4 Certificate of Merger.
Upon the required approval by the Managing Member and the Members of a
Merger Agreement, a certificate of merger shall be executed and filed with the
Secretary of State of the State of Delaware in conformity with the requirements
of the Delaware LLC Act.
Section 15.5 Effect of Merger.
(a) At the effective time of the certificate of merger:
(i) all of the rights, privileges and powers of
each of the business entities that has merged or consolidated,
and all property, real, personal and mixed, and all debts due
to any of those business entities and all other things and
causes of action belonging to each of those business entities,
shall be vested in the Surviving Business Entity and after the
merger or consolidation shall be
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the property of the Surviving Business Entity to the extent
they were of each constituent business entity;
(ii) the title to any real property vested by
deed or otherwise in any of those constituent business
entities shall not revert and is not in any way impaired
because of the merger or consolidation;
(iii) all rights of creditors and all liens on or
security interests in property of any of those constituent
business entities shall be preserved unimpaired; and
(iv) all debts, liabilities and duties of those
constituent business entities shall attach to the Surviving
Business Entity and may be enforced against it to the same
extent as if the debts, liabilities and duties had been
incurred or contracted by it.
(b) A merger or consolidation effected pursuant to this
Article XV shall not be deemed to result in a transfer or assignment of assets
or liabilities from one entity to another.
ARTICLE XVI
GENERAL PROVISIONS
Section 16.1 Addresses and Notices.
Any notice, demand, request, report or proxy materials required or
permitted to be given or made to a Member under this Agreement shall be in
writing and shall be deemed given or made when delivered in person or when sent
by first class United States mail or by other means of written communication to
the Member at the address described below. Any notice to the Company shall be
deemed given if received by the Managing Member at the principal office of the
Company designated pursuant to Section 2.3. The Managing Member may rely and
shall be protected in relying on any notice or other document from a Member,
Assignee or other Person if believed by it to be genuine.
Section 16.2 Further Action.
The parties shall execute and deliver all documents, provide all
information and take or refrain from taking action as may be necessary or
appropriate to achieve the purposes of this Agreement.
Section 16.3 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their heirs, executors, administrators, successors, legal
representatives and permitted assigns.
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Section 16.4 Integration.
This Agreement constitutes the entire agreement among the parties
hereto pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
Section 16.5 Creditors.
None of the provisions of this Agreement shall be for the benefit of,
or shall be enforceable by, any creditor of the Company.
Section 16.6 Waiver.
No failure by any party to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy consequent upon a breach thereof shall constitute waiver of any
such breach of any other covenant, duty, agreement or condition.
Section 16.7 Counterparts.
This Agreement may be executed in counterparts, all of which together
shall constitute an agreement binding on all the parties hereto, notwithstanding
that all such parties are not signatories to the original or the same
counterpart. Each party shall become bound by this Agreement immediately upon
affixing its signature hereto, independently of the signature of any other
party.
Section 16.8 Applicable Law.
This Agreement shall be construed in accordance with and governed by
the laws of the State of Delaware, without regard to the principles of conflicts
of law.
Section 16.9 Invalidity of Provisions.
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
Section 16.10 Consent of Members.
Each Member hereby expressly consents and agrees that, whenever in this
Agreement it is specified that an action may be taken upon the affirmative vote
or consent of less than all of the Members, such action may be so taken upon the
concurrence of less than all of the Members and each Member shall be bound by
the results of such action.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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HEP LOGISTICS GP, L.L.C.
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LIMITED LIABILITY COMPANY AGREEMENT
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first written above.
XXXXX ENERGY PARTNERS, L.P.
By: HEP LOGISTICS HOLDINGS, L.P.
its General Partner
By: XXXXX LOGISTIC SERVICES, L.L.C.
its General Partner
By:____________________________
Name:
Title:
SIGNATURE PAGE
HEP LOGISTICS GP, L.L.C.
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
